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Exploring e-discovery in federal courts

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The first year of a federal e-discovery program is now complete in the 7th Circuit, and despite its success one clear message sets the stage for how the pilot project moves forward: More Indiana judges and attorneys need to step up and get involved.

At an annual joint meeting of the 7th Circuit Bar Association and Judicial Conference for the 7th Circuit May 2-4, more than 600 lawyers and judges from the three-state Circuit converged on downtown Chicago for a conference that had at its core the e-discovery project that’s been under way since October.

With the pilot project serving as a backdrop, several seminars centered on the issue and each person attending a seminar the first day received a 70-page report on the first phase. The full 425-page report is available online at www.7thcircuitbar.org.
 

james holderman Holderman

Running Oct. 1, 2009, to May 1, 2010, the pilot program is designed to streamline discovery and resolve e-discovery disputes by encouraging earlier and more informal meetings and conferences between attorneys and the court. A list of established principles identify the formats of this kind of contemporary discovery that are generally not required to be preserved in order to reduce litigation fights and overall costs.

“It’s a new decade, and it’s time for a new approach,” said Chief Judge Frank Holderman from the Northern District of Illinois, who led the pilot project’s first phase along with U.S. Magistrate Judge Nan Nolan. “E-discovery and electronically stored information is something that will be with us for the rest of our legal careers. That’s the way the world is now.”

On the opening day of the conference, Chief Judge Holderman pointed out that during United States Supreme Court Chief Justice John G. Roberts’ visit to Indiana University School of Law – Indianapolis in April, the justice spoke about the high costs of litigation that can stem from massive discovery. Chief Judge Holderman noted the irony that the comments came in Indianapolis, the same city where informal talks began at the 2009 7th Circuit meeting about establishing an e-discovery initiative.

“Judges and lawyers just haven’t been attuned to this … and that’s a frustration,” he said.

Those participating so far say the hope is that this multi-year, multi-phase process will change some of the distrust between opposing counsel and allow attorneys to get what they want in discovery quicker and more efficiently.

Generally, the pilot project is divided into early case assessment and education areas, with each of those subdivided into guidance regarding:

• The duty for attorneys to meet and confer and identify disputes for early resolution;

• E-discovery liaisons, who could be attorneys or third-party consultants familiar with a party’s e-discovery efforts and how those documents are stored or produced;

• Preservation requests and orders;

• Scope of preservation;

• Identification of electronically stored information;

• Production format; and

• Judicial expectations of counsel

During this initial stage, the program’s principles were applied to certain cases throughout the Circuit, with an emphasis on the Northern District of Illinois where Chief Judge Holderman and other key players are situated. More than 2,000 lawyers and judges participated in web seminars on the topic earlier this year; specifically 13 judges within the Northern District of Illinois – five District judges and eight magistrates – brought the concepts into 93 civil cases pending before them. Nearly 300 attorneys participated. While the participation is Illinois-focused, some Indiana and Wisconsin attorneys took part.

The newly released report on phase one shows that all participating judges either agreed or strongly agreed that the involvement of e-discovery liaisons made the process more efficient, and more than 90 percent thought the concepts increased or greatly increased counsels’ level of attention to the technologies involved in the discovery process and how their clients produce discovery from those systems.

Attorneys didn’t have as positive feedback to the e-discovery principles, according to the report. Less than half of the participating attorneys responded, but significantly 61 percent of those found the principles had no effect on the parties’ ability to resolve e-discovery disputes without court involvement. Respondents were fairly evenly divided as to the role of their respective clients regarding e-discovery; however, 43 percent reported that the principles improved the fairness of the discovery process, and 55 percent believed they had no effect on that fairness. Only 3 percent saw a decrease, the report shows.

While the attorney participation isn’t detailed in the full report, those leading the effort say the Indiana and Wisconsin communities weren’t as largely represented as they’d hoped. The little involvement from those states was a disappointment for this stage, leaders said. Tables were set up at the 7th Circuit conference for people to sign up to participate, and several attorneys from Indiana had written their names down.

Leaders hope to expand the geographic reach of the pilot program for the second phase – July 1, 2010, through May 2011 – as well as modify certain parts of the established principles or explore particular nuances that come up relating to e-discovery. This is largely because Chief Judge Holderman and Magistrate Nolan are both from Illinois’ Northern District, but also because other jurisdictions haven’t had the same kind of e-discovery issues in their own cases.

“Fortunately, we’ve been able to dodge those thornier e-discovery issues that others have faced in the Circuit,” said U.S. Magistrate Judge Tim A. Baker in the Southern District of Indiana, who participated in a panel discussion at the conference. “Not everything’s been smooth sailing at every stage, but by and large lawyers here and their clients have been addressing these e-discovery issues early on. That could be why there hasn’t been a rush to join, and I don’t know if there will be, but we certainly have that information.”

Listening to the presentations, Ice Miller attorney Brian Paul said he was enthused about the initiative but would like to see some more cost-shifting factored into the process, if costs are an important reason behind the project. If the courts consider cost-shifting when parties or plaintiffs request documents, that could scale down those initial requests and possibly fine-tune what’s being explored for discovery, he said.

During the conference, judges and lawyers from all jurisdictions said various parts of the pilot project are already being used in pending litigation they have. Sitting on an eight-person panel, Magistrate Judge Baker said he regularly pushes attorneys to meet and confer about discovery issues even before pre-trial conferences. That’s helped him avoid and resolve many possible discovery problems, he said.

Recently, that issue surfaced in a multi-million dollar case in which lawyers hadn’t discussed e-discovery before coming before him. They submitted a case management plan, but Magistrate Judge Baker denied that plan and ordered the attorneys to talk more before submitting a more comprehensive plan within 14 days. He expects that plan to be much more substantive in the discovery area, he said.

“You have to be willing to raise those issues at a pre-trial hearing,” Magistrate Judge Baker said.
 

debbie lynch Lynch

Magistrate Judge Debra McVicker Lynch from the Southern District of Indiana echoed that thought and said she wants attorneys to call her court to set up discovery conferences in order to address any communication issues they might have with opposing counsel.

She has three cases pending where e-discovery seems to be burdensome. After she set evidentiary hearings, the issues went away because counsel started talking more with IT people as a result and resolved the problems. If it’s a matter of one side’s attorney not responding adequately, a conference could motivate that party to respond, she said.

“(E-discovery) is not a subset of discovery anymore … almost every case discovery has some e-component to it,” she said. “But sometimes, we don’t know how complex an issue is.” •
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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